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Law column: Can a supervisor or HR director be liable in an employment lawsuit?

Gavel.
Gavel.

Recent decisions indicate that courts and juries are willing to impose personal liability on supervisors and human resource professionals for violation of various laws.

The basis for individual liability is found in many employment law statutes’ definition of the term “employer.”

For example, the Family Medical Leave Act (FMLA) incorporates the definition of an employer from the Fair Labor Standards Act (FLSA) and states that “any other person who acted directly or indirectly, in the interest of an employer” may be held personally liable for a violation of the FMLA or FLSA.

As a result, a supervisor or HR director who fires an employee because of excessive absenteeism could be held personally liable if the termination violated the FMLA. To do so, the employee would merely name both the employer and the human resource director or supervisor individually in the lawsuit and obtain a personal judgment against both of them if successful.

The employee could elect to collect from either, or both.

The results have not been promising for managers and human resource professionals in both wage and hour and FMLA litigation. In one 2013 New York case, a supermarket company’s owner and CEO was found personally liable for millions of dollars in a FLSA wage class-action lawsuit.

In 2000, an Iowa federal judge ordered an HR director personally to pay $40,000 in damages for an FMLA violation in addition to damages that the employer was ordered to pay.

However, the federal statutes are not consistent regarding individual liability. In addition to the FMLA and FLSA, several additional federal statutes such as the Equal Pay Act, Employment Retirement Income Security Act and the Health Insurance, Portability and Accountability Act, better known as HIPAA, allow suing supervisors and other employees in their personal capacity.

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In one high profile lawsuit, for example, female attorneys sued a New York law firm and its managing partners for sex discrimination in pay. Other federal statutes such as title VII of the Civil Rights Act, the Americans with Disabilities Act or the Age Discrimination Statute do not permit individual supervisor liability.

In any event, employers, supervisors and HR professionals can reduce the likelihood of personal liability in a number of ways.

For one thing, juries do not like employers or supervisors tampering unfairly with an employee’s job. Accordingly, evidence of good faith and fair dealing with employees can be a powerful defense.

Supervisors and HR directors should take extra steps to show they were not out to get the employee or judging the employee too harshly. Bad faith will be found from direct evidence (“I can’t stand you”) or can be inferred from a manager’s preferential practices, negligent practices or failure to follow standard company procedures.

As a result, employers always should document employee files accurately.

Regular training of all employees regarding their legal obligations similarly shows employers are committed to doing the right thing. Courts and juries will infer intentionality against companies for their failure to train managers on basic employment issues.

Moreover, better-trained employees hopefully results in fewer mistakes, as supervisors who make mistakes are more likely to be named in lawsuits due to their lack of knowledge.

• Wilford H. Stone is an attorney with Lynch Dallas.

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